Delaware Abortion Laws

Summary

Abortion is legal in Delaware through viability. After that point, abortion is only legal to save the life of the mother or if the fetus is not able to live outside the womb without extraordinary efforts.

Introduction

Before the Supreme Court’s decision in Roe v. Wade in 1973, only a handful of states allowed access to abortions. In the groundbreaking decision, the Supreme Court stated that the 14th Amendment’s constitutional right to privacy encompassed a woman’s right to terminate a pregnancy.

In the years since, many Americans have debated whether abortion should be legal. Since the early 1990s, there have been numerous Supreme Court cases concerning the legality of abortion.

It wasn’t until 2007, when the Court made its decision in Gonzalez vs. Carhart and Gonzalez v. Planned Parenthood Federation of America, that severe restrictions on abortion became de rigueur in the United States. In Gonzalez, the Court upheld the first federal law that criminalized abortions, specifically for patients in their second trimester.

Impact of the U.S. Supreme Court Decision in Dobbs

The above anti-abortion cases culminated in the Supreme Court of the United States agreeing to hear Dobbs v. Jackson Women’s Health Organization in 2022. This case involved the legality of banning abortions in pre-viability pregnancies.

The critical component of Dobbs was that the law banning abortion did not take into account the health of the mother. This was a significant departure from what the Court held in Roe v. Wade. Ignoring decades of precedent, the Dobbs decision overturned Roe v. Wade. The overturn by Dobbs returned the decision to criminalize abortion to the states.

After the Court handed down its decision in June 2022, state legislatures began implementing laws restricting a woman’s access to abortion. This included the activation of trigger bans. According to the Guttmacher Institute, 13 states now impose a near or total abortion ban, while two others have severe restrictions on a woman’s right to choose.

No longer did the law protect women’s right to have an abortion in cases where the mother’s life was in jeopardy or when the pregnancy was the result of rape or incest. This seminal case also gave states the power to punish abortion providers, including doctors and nurse practitioners, threatening jail time and a suspension of their medical licenses.

Delaware’s Governor, John Carney, chose not to use the Supreme Court’s holding in Dobbs to restrict further a woman’s access to abortion care and abortion services. Below, we will discuss two recent pieces of legislation in Delaware that increase the protection of women’s abortion rights. We will also provide a chart outlining Delaware’s current abortion laws.

Post-Dobbs Legislation in Delaware

With the court ruling in Dobbs, the Supreme Court gave states the power to implement abortion restrictions. As a result, many states imposed new abortion bans and partial bans within weeks of the Court handing down its decision. Some had trigger laws that took immediate effect.

Unlike these other states, lawmakers in Delaware not only removed barriers to abortion but also passed new laws protecting a patient’s right to abortion access. Governor John Carney passed legislation that protects medical professionals offering reproductive health care from criminal and civil liability. The attorney general's office can answer any questions about abortion in Delaware.

House Bill 455: Expanded Access to Abortion Care

In June 2022, Delaware’s governor presented House Bill 455 to the Delaware General Assembly. The bill expanded a patient’s right to have an abortion beyond viability. This is in stark contrast to other states that ban abortions after the first trimester.

Specifically, this Delaware law protects medical staff from criminal prosecution and civil litigation as long as they receive the proper abortion care training. This new state law protects physician assistants, midwives, and other healthcare providers who perform medical procedures related to abortion.

HB 455 protects both state residents and out-of-state residents who come to Delaware to procure an abortion. This includes, but is not limited to, women who travel from Maryland, New Jersey, and Pennsylvania.

House Bill 110: Offers Insurance Coverage to Women Seeking an Abortion

In September 2024, Delaware Governor John Carney passed another state law, HB 110, requiring state and private health insurance companies to offer up to $750 coverage for abortion-related medical expenses.

The new law applies to the following:

• Medicaid
• State employee insurance
• Private health insurance

Unlike other laws regulating insurance companies’ contributions to costs for the abortion pill, a medication abortion, or an abortion procedure, HB 110 does not offer an exemption for religious employers. All health insurance providers in Delaware must adhere to this law. The cap for this type of coverage is $750. Private insurers have the option of covering more than the cap.

Delaware Abortion Laws at a Glance

The following chart lists the main provisions of Delaware's abortion laws. See FindLaw's Reproductive Rights section to learn more.

Delaware Abortion Laws: Related Resources

Abortion laws are in constant flux, in large part because of the Supreme Court’s decision in Dobbs. If you have questions about Delaware law or feel someone has denied you the right to access an abortion, help is available.

There are many attorneys in Delaware with healthcare law experience who can help you. You may also wish to speak with a qualified criminal defense attorney if you learn you are facing criminal charges for your choice to have an abortion.